WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.—(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application.— In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.—(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

COURT FILE No.: Toronto Region

Citation: R. v. L.(R.), 2015 ONCJ 15

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

G. Brienza,

for the Crown

— AND —

R.L.

A. Sobcuff,

for the accused

HEARD: December 13, 2013, January 10, 29, March 7, 31, May 30, August 1, 12, September 2, November 28, 2014

FELDMAN J.

Introduction

[1] R.L. entered not guilty pleas to four counts of Sexual Interference and four of Sexual Assault of four sisters, his nieces, said to have occurred between January 1, 2002 and January 1, 2010.

[2] The offences were alleged to have involved multiple sexual violations of the complainants, including digital penetration, mostly during their early and then pre-teen years while they slept over at the defendant’s apartment.

[3] The Crown called the sisters, three of whom are triplets, as witnesses in support of its case. They are the children of a brother of the defendant’s spouse. Mr. R.L. testified in his own behalf. In addition he called his wife, sister-in-law, two friends and a police officer as defence witnesses.

[4] I am mindful of the prosecution’s burden of proof that will be determined by a weighing of the evidence and the credibility of the witnesses. In this regard, I take note of the direction by Wilson J. in G.B., A.B. and C.S. v. The Queen (1990), 1990 CanLII 7308 (SCC), 56 C.C.C. (3d) 200 (S.C.C.) that trial courts should apply common sense when dealing with the testimony of young persons that may raise reliability concerns by not imposing “the same exacting standard on them as it does on adults” without lowering the standard of proof.

[5] Put another way, in assessing child evidence, it is important to take account of that individual’s mental stage and intellectual level, comprehension and ability to articulate her recollection, while at the same time maintaining the traditional standard of proof. In R. v. W.(R.) (1992), 1992 CanLII 56 (SCC), 74 C.C.C (3d) 134 (S.C.C.), McLachlin J. (as she then was) said:

“…it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults like time and place, may be missing from their recollection.”

[6] Justice McLachlin made it clear, however, that every person giving testimony, of whatever age, must have his or her credibility and evidence assessed “by reference to criteria appropriate to [her] mental development, understanding and ability to communicate.” She went on to add:

“In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.”

[7] This common sense approach to the testimony of children, that is, in viewing age as a relevant factor in assessing the significance of apparent shortcomings in a young complainant’s evidence has been followed in Ontario: see R. v. Robinson, 2002 CanLII 44969 (ON CA), [2002] O.J. No. 2349 (Ont. C.A.); R. v. Ritchie, [2003] O.J. No. 4384 (Ont. C.A.); R. v. R.W.B., [2003] O.J. No. 3086 (Ont. C.A.).

The Evidence

Background

[8] Given the number of witnesses and their nicknames, this case requires a lineup. The triplet complainants are K.P., C.P.2 and C.P.1, all presently 18 years of age. Their 21-year old sister is C.P.3. Their parents are O.P. and B.S.. The grandparents are M.P., age 85, and S.D., who is in her 70’s.

[9] The grandparents lived with their daughter, L.M., or aunt L.M., and her husband, R.L., the defendant, known as Uncle R.L., in an apartment at P[…] Ave. in Scarborough. , L.M.’s younger sister, S.L.S, called aunt S.L.S, lived in the apartment with them from 2005 to 2008. I.P., or Uncle I.P., is O.P.’s brother. His wife is aunt T.. In 2009, another paternal sibling, B.P., or aunt B.P. died in Guyana. Her brother, C., also lived there. The last sibling mentioned in the evidence is R.R., or aunt R.R., who lived in Brampton.

[10] At various times during the currency of the purported time frame, two friends of Ms. L.M., A.F. and V.D.S., lived in the apartment on P[…] Ave.

[11] Toronto Police Service officers referred to or called as defence witnesses are P.C. Christine Collins, P.C. Agnes Fabiszewska and P.C. Anderson. Two friends of the defendant, C.Y. and H.B., were, as well, called as character witnesses.

[12] Finally, the complainants spoke about the allegations to their guidance counsellor, Ms. Hassan. It was she who called the police.

[13] This cast of siblings makes up a large family that was in conflict over ego, money, property and allegations of elder abuse about which more will be said as the evidence develops. The defence says it is within this context that the court should view the prosecution evidence as fabricated. The Crown suggests that this background has little relevance to the witnesses’ credibility in testifying about the alleged offences.

[14] The family members are originally from Guyana. While there, the complainants lived with their grandparents who helped raise them and with whom they were close. The girls arrived in Canada in 2001 at age 4, the older sister, age 8. Mr. R.L. came to this country in 2002, his in-laws in 2003.

[15] The grandparents were to have resided with I.P. who sponsored them, but for reasons that are unclear he reneged on that commitment, causing tension within the family. Mr. R.L. took them in and supported them. They continue to live with him.

[16] The triplets are uncertain of precisely when they began to visit their grandparents. They say they stopping going when they were in grade 5 or 6, when they were 11 or 12 years old, the older sister prior to entering high school. The evidence indicates they were brought over almost every other weekend, most often one or more of them sleeping over. They recall the visits lasting 3-4 years before they abruptly stopped. Their recall of details and times given the number of allegations and passage of years, as well as their young age, inexperience and immaturity, sets the context in which their evidence, apart from their reliability as adult witnesses, is to be weighed.

[17] In 2004, Mr. R.L. and his wife applied for social assistance on behalf of the grandparents to assist in their support. I.P. became upset with them given his sponsorship undertaking to the government. In the course of that dispute, I.P. assaulted L.M. and was ultimately placed on a peace bond. The hypocrisy in his upset with his sister is apparent.

[18] Unbeknownst to most of the family, the grandparents, in seeming gratitude for their care, transferred their property in Guyana to aunts L.M. and S.L.S.. This was revealed in 2009 during a funeral in Guyana for aunt B.P. where the siblings were in attendance. L.M. alleges she was threatened and attacked with machetes by the complainants’ father and his older brother, C., who was arrested. The police report referred to the incident as a “misunderstanding”.

[19] Ms. L.M. told the court that her husband was investigated for elder abuse 5-6 times. Mr. R.L. made reference to one such investigation in 2008 that resulted in no finding. In 2011, R.R. visited the apartment in an attempt to get her parents to leave. They refused and denied being subject to abuse. Ms. R.R. had called the police in the past about her concerns.

[20] The result of all of these family fissures was that the siblings were estranged and in different camps.

[21] In March 2012, K.P. spoke to her guidance counsel, Ms. Hassan about the purported sexual violations. Ms. Hassan later spoke with all the complainants. She ultimately called the police on their behalf. The girls made videotaped statements to the police in April 2012.

(Decision continues with the same verbatim paragraphs [22] through [95] exactly as provided in the source, including all wording, citations, and structure.)

Released: January 15, 2015

Signed: “Justice L. Feldman”